NATIONAL JOURNAL OF SEXUAL ORIENTATION LAW
VOL. 1, ISSUE 1
Mary Sylla, editor (mmsylla@gibbs.oit.unc.edu)
Note by GREG LADNER
Baehr v. Lewin: Will Equal Protection Lead to the=20
End of Prohibitions on Same-Sex Marriages?
(Editor's note: On June 22, 1994, after the submission of this piece, the
governor of Hawaii signed into law a bill which prohibits same-sex
marriage in Hawaii by defining marriage as existing only between two
people of opposite sexes. The text of the law chastises the Hawaii
Supreme Court for its decision in Baehr v. Lewin, saying the decision
encroached on the legislature's law-making function and infringed on the
separation of powers of the respective branches of state government.=20
Though this development clearly changes the circumstances of its
reconsideration, Baehr v. Lewin is still scheduled to be reheard by the
lower court in April 1995.)
I. Introduction
In 1993 the Hawaii Supreme Court broke new ground in the
controversial area of homosexual
rights in the family law context.1 In Baehr v. Lewin,2 the
Hawaii
Supreme Court held that a state statute barring same-sex
marriages is presumed unconstitutional unless the state can show
that "(a) the statute's sex based classification is justified by
compelling state interests and (b) the statute is narrowly drawn
to avoid unnecessary abridgment of ... constitutional rights".3
This Note will examine the impact of this decision in Hawaii
and in other states. First, this Note will examine the
regulation of marriage in the United States,4 and it will
review the history of attempts at judicial recognition of
same-sex marriages.5 Next, this Note will examine the facts in
Baehr6 and the Hawaii Supreme Court's analysis,7 concluding
that the Hawaii Supreme Court correctly decided the case.8
Finally, this Note will examine the impact of this decision,
which may include attempts at amending the Hawaii State
Constitution.9 Undoubtedly, the Baehr decision will generate
heated debate in Hawaii.10 It will also affect other states
confronting the issue of same-sex marriage,11 and it may in fact
promote extensive litigation in other states before the waters
clear on the issue of same-sex marriage.12
II. BACKGROUND
The regulation of marriage has traditionally been a function
reserved for the states.13 In the state of Hawaii, "the
business of marriage creation has been codified for more than a
century"14 and "common law" marriages are no longer
recognized.15=20
The United States Supreme Court, however, has placed bounds
on state control of marriage, primarily by holding that marriage
is a fundamental right.16 The Supreme Court first characterized
the right of marriage as fundamental in Skinner v. Oklahoma ex=20
rel. Williamson.17 In Skinner, where a state statute permitting
involuntary sterilization of criminals was held invalid, the
Supreme Court stated that "[m]arriage and procreation are
fundamental to the very existence and survival of the human
race."18
Because marriage is a fundamental right, regulations that
interfere with the exercise of that fundamental right are subject
to a higher level of scrutiny.19 In Zablocki v. Redhail, the
Supreme Court invalidated a state statute which interfered
"directly and substantially with the right to marry"20 because
the statute did not satisfy the "strict scrutiny" standard.21 =20
The Supreme Court has generally contemplated marriage as an
institution which involves members of the opposite sex,22 as in
Skinner, where the Court linked the right to marry to the right
of procreation.23 The Supreme Court has also noted the historic
and traditional nature of marriage and family, again implicitly
contemplating marriage as an institution involving the union of
man and woman.24=20
However, the Supreme Court has not always allowed states to
limit marriage to a certain traditional configuration. In a 1967
case, Loving v. Commonwealth of Virginia,25 the Virginia courts
determined that interracial marriage could not exist because such
a union was intrinsically unnatural, and because "it had never
been the custom of the state to recognize mixed marriages,
marriage always having been construed to presuppose a different
configuration."26 The U.S. Supreme Court reversed the Virginia
courts.27 Holding that racial classifications are subject to
the "most rigid scrutiny,"28 the Supreme Court found that
Virginia's anti-miscegenation statute29 violated the Equal
Protection and Due Process Clauses of the Fourteenth
Amendment.30=20
The Supreme Court has also indicated that a higher level
of scrutiny might be applied to statutory sex-based
classifications.31 In Frontiero v. Richardson, the Supreme
Court held that a federal statute which accorded disparate
treatment to male and female military employees was subject to a
higher level of scrutiny.32 =20
Likewise, on the state level, the Supreme Court of Hawaii
has held that laws which classify on the basis of a suspect
category or impinge upon fundamental rights are subject to a
higher level of scrutiny.33 In a case dealing specifically with
a sex-based classification, Holdman v. Olim,34 the Hawaii
Supreme Court noted that it could apply a higher level of
scrutiny to sex-based classifications.35 However, in Holdman,
which involved a challenge to a prison's special dress
requirement for female visitors, the Hawaii Supreme Court did not
decide the exact level of scrutiny to apply to sex-based
classifications because the special dress requirement survived
even under the strict scrutiny test.36 =20
Despite the higher level of scrutiny applied to interference
with fundamental rights such as marriage, and also to statutory
sex-based classifications, no court until Baehr found a
prohibition on same-sex marriage to be unconstitutional.37 A
variety of important, yet unsuccessful challenges to prohibitions
on same-sex marriage were brought in the early 1970's.38=20
In the first major decision dealing with the issue, Baker v.
Nelson,39 two males filed suit after a courthouse clerk declined
to issue them a marriage license because they were of the same
sex.40 The Minnesota Supreme Court first held that the plain
language of the state marriage statute precluded same-sex
marriage because marriage by definition involves a man and a
woman.41 The court then rejected the petitioners'
constitutional claims, holding that the statute did not violate
the Due Process or Equal Protection Clauses of the Fourteenth
Amendment.42 =20
In reaching the conclusion that there were no constitutional
violations, the Minnesota Supreme Court examined both Skinner v.
ex rel. Williamson43 and Griswold v. Connecticut.44 The Court
noted that those cases did not support the contention that a
prohibition of same-sex marriage is invidiously
discriminatory.45 The court distinguished Loving v.
Virginia,46 concluding that "there is a clear distinction
between a marital restriction based merely upon race and one
based on the fundamental difference in sex."47=20
Approximately two years after the Baker decision, the
Kentucky Court of Appeals, in Jones v. Hallahan,48 faced a
challenge by two females who were refused a marriage license by a
courthouse clerk.49 In Jones, the Kentucky Court of Appeals
held that no constitutional issues were involved because marriage
by definition involves a man and a woman, thus the appellants
were incapable of entering into marriage.50 The court stated
that "the relationship proposed by the appellants does not
authorize the issuance of a marriage license because what they
propose is not a marriage."51
The Washington Court of Appeals faced the next major case to
deal with the issue of same-sex marriage in Singer v. Hara.52=20
Two males who were denied a marriage license filed a motion to
show cause, which was subsequently denied by the trial court.53=20
On appeal, the appellants alleged violations of the Equal Rights
Amendment (ERA) to the Washington State Constitution as well as
violations of the United States Constitution.54 The Washington
Court of Appeals affirmed the denial of the marriage license,
finding first that the plain language of the marriage statute
showed that the legislature had not authorized same-sex
marriages.55 The court next found that there was no violation
of the state's ERA.56 Using the logic of the previous same-sex
marriag
e cases,57 the court reasoned that the appellants were not being
discriminated against on the basis of sex, they were excluded
from marrying solely because of the definition of marriage, which
the court defined as involving two people of the opposite sex.
58
Finally, the Singer court noted that for purposes of the
Fourteenth Amendment, legislative acts which discriminate on the
basis of sex require strict judicial scrutiny.59 However,
because the court had already held in connection with its ERA
discussion that the=20
statute did not discriminate on the grounds of sex, strict
judicial scrutiny was held not applicable here.60 The statute
instead had to meet the rational basis standard.61 The court
stated that "there exists a rational basis for the state to limit
the
definition of marriage to exclude same-sex marriages."62=20
After Singer, there have been occasional unsuccessful forays
into the courts by same-sex couples seeking to be married.63=20
Same-sex couples have also, with mixed success, sought affirmance
of other rights through the judicial system.64 However, no sta
te had recognized same-sex marriage, and courts consistently held
that statutes prohibiting same-sex marriage were valid.65
III. Analysis
A. The Facts of The Baehr Case
On or about December 17, 1990, three same-sex couples66
filed applications for marriage licenses with the Hawaii
Department of Health (DOH).67 The DOH denied the marriage
license applications on the ground that each couple was of the
same sex and any=20
union between members of the same sex was not a valid marriage
under the applicable Hawaii law - Hawaii Revised Statute (HRS)
Y$572-1.68
On May 1, 1991, the 3 couples joined in a suit against the
DOH seeking, inter alia, a declaration that HRS Y$572-1 was
unconstitutional as it was construed and applied by the DOH.69=20
The couples averred that the DOH's interpretation and application
of HR
S Y$572-1 to deny same-sex couples access to marriage licenses
violated their rights to privacy, equal protection of the laws,
and due process of law as guaranteed by the Hawaii
Constitution.70 The Hawaii Circuit Court granted the DOH's
motion for judgment on the pleadings and dismissed the complaint
with prejudice,
holding that the DOH was entitled to judgment as a matter of
law.71
Reversing the circuit court in a plurality opinion,72 the
Hawaii Supreme Court held that sex is a suspect category for
purposes of equal protection analysis under the Hawaii
Constitution,73 thus HRS Y$572-1, which establishes a sex-based
classification,
is subject to the "strict scrutiny" test.74 Accordingly, HRS
Y$572-1 is presumed unconstitutional unless the DOH can show that
the statute satisfies "strict scrutiny".75 The Hawaii Supreme
Court then vacated and remanded the case for proceedings consis
tent with its holding.76 =20
B. Narrative Analysis
Plurality Opinion
To reach this ground-breaking holding, the Hawaii Supreme
Court divided its analysis into two parts. First, the court
examined the couples' allegation that HRS Y$572-1 violated their
right to privacy as guaranteed by the Hawaii Constitution.77=20
Second, t
he court examined the couples' allegation that HRS Y$572-1
violated their rights under the Equal Protection Clause of the
Hawaii Constitution.78
The court noted first that the right to privacy guaranteed
by the Hawaii Constitution encompasses at least all of the
fundamental rights within the privacy protection of the U.S.
Constitution.79 Thus, the court looked to the scope of the
right to priva
cy guaranteed by the U.S. Constitution.80 In particular, the
court examined two U.S. Supreme Court cases, Skinner81 and
Zablocki.82 The Hawaii Supreme Court noted that while both
cases recognized a fundamental right to marriage subsumed within
the ri
ght to privacy, both cases also seemed to contemplate marriage as
a union between a man and woman.83 Thus, the court admitted
that
it was being asked to recognize a new fundamental right, the
fundamental right of same-sex couples to marry.84
To determine fundamental rights, the court stated that it
must look "to the 'traditions and [collective] conscience of our
people'".85 Noting that a right to same-sex marriage was not
rooted in the traditions and collective conscience of the
people, =20
the court concluded that it would not create a new fundamental
right to same-sex marriage arising from the right to privacy.86=20
However, the court mentioned that the applicant couples were not
without a potential remedy because the court still had to co
nsider the Equal Protection Clause of the Hawaii Constitution.87
The Hawaii Supreme Court then engaged in a detailed
discussion of the application of the state Equal Protection
Clause to HRS Y$572-1.88 The court first noted that the
regulation of marriage is within the province of a state's
powers,89 and that various rights and benefits are associated
with legally sanctioned
marriages.90 The court also explained that the Equal Protection
Clause of the Hawaii Constitution provides further protection
than that of the U.S. Constitution because the Hawaii
Constitution
explicitly prohibits state-sanctioned discrimination on the
basis of sex.91
Next, the Hawaii Supreme Court distinguished major cases
from other jurisdictions which dealt with the issue of same-sex
marriage.92 First, the court noted that Baker v. Nelson93 and
De Santo v. Barnsley94 were not relevant. Baker was considered
irrelevant because it only considered federal constitutional
issues, and did not involve any state constitutional issues.95=20
De Santo was considered irrelevant because it dealt with the
issue of state recognition of "common-law marriage", which was
not an issue in Baehr.96=20
The court then entered into an important phase in its
analysis, concerning the definition of marriage. The DOH had
argued that the couples could not be
married because marriage by definition involved partners of the
opposite sex.97 This was the same logic used in Jones v.
Hallahan98 and=20
Singer v. Hara.99 The Hawaii Supreme Court determined the=20
logic of this argument to be "circular and unpersuasive."100 The
court noted the
parallel between the DOH's limiting marriage to a certain
traditional definition and the Virginia courts in Loving claiming
that=20
interracial marriage could not exist because mixed marriages were
never the custom, and because marriage was always "construed to
presuppose a different configuration."101 That type of reasoning
was rejected by the United States Supreme Court in Loving.102 The
Hawaii Supreme Court stated that the United States
Supreme Court's rejection of such reasoning in the context of
interracial marriage also discredits the reasoning of the DOH and
the Jones and Singer courts in the context of same-sex
marriages.103
Finally, the Hawaii Supreme Court determined that, as a sex-
based classification, HRS Y$572-1.104 should be subject to strict
scrutiny. The Court noted that it applies strict scrutiny to
laws classifying on the basis of
suspect categories or impinging upon fundamental interests.105=20
Becau
se "HRS Y$572-1, on its face and as applied, regulates ... on the
basis of the applicants' sex106 ... it establishes a sex-based
classification."107 The court next looked at Holdman,108 a prior
case which dealt with a sex-based classification. The Court=20
noted that in Holdman, it determined that sex-based
classifications were subject to some form of heightened scrutiny,
arguably strict scrutiny.109 Furthermore in Holdman, the
Hawaii Supreme Court looked to the United States Supreme Court
decision in Frontiero v. Richardson,110 where the Court implied
that if the
Equal
Rights Amendment had been part of the United States Constitution,
the United States Supreme Court would have subjected statutory
sex-based classifications to strict scrutiny.111 =20
Thus, because the Hawaii Constitution contains an Equal Rights
Amendment,112 the Hawaii Supreme Court determined that statutory
sex-based classifications are subject to the strict scrutiny
test.113 Accordingly, HRS Y$572-1 is presumed to be unconstituti
onal, unless the DOH can show on remand that "(a) the statute's
sex based
classification is justified by compelling state interests and (b)
the statute is narrowly drawn to avoid unnecessary abridgment of
the applicant couples' constitutional rights".114=20
Concurrence
The concurrence agreed that the circuit court erroneously
granted the DOH's motion for judgment on the pleadings.115=20
However, noting that this decision turned on a sex-based
classification, the concurrence asserted that genuine issues of
material fact remained regarding aspects of a person's "sex" that
are
"biologically fated."116 Citing to various news articles
discussing evidence of a genetic role in sexual orientation,117
the concurrence stated that if differences in sexual orientation
are "biologic
ally fated", then the state is discriminating by permitting
opposite-sex marriages and not permitting same-sex marriages.118=20
However, if a person's sexual orientation is not "biologically
fated", then the state may legitimately prohibit same-sex
marriage
s.119 Thus, the concurrence believed that there should be
findings of fact to determine the biological nature of sexual
orientation.120 =20
Dissent
The dissent agreed with the plurality that the appellants do
not have a fundamental right to same-sex marriage arising out of
the Hawaii Constitution's right to privacy.121 However, the
dissent disagreed with the plurality's equal protection analysis
and suggested that the appellants should address their claims
to the legislature.122 =20
The dissent first criticized the plurality's use of Loving
to conclude that the appellants have a civil right to
marriage.123 According to the dissent, because Loving did not
involve a same-sex couple, it is not proper authority for
determining that same-sex marriage should be given civil right
status.123
The dissent next noted that while Zablocki established
constitutional limits on a state's right to regulate marriage, it
does not limit a state's right to prohibit same-sex marriages.125
Essentially the dissent argued that the earlier same-sex marriage
cases were controlling precedent.126 In particular, the
dissent pointed to the reasoning that appellants could not be
married because marriage by definition involves members of the
opposite sex.127
The dissent next argued was HRS Y$572-1 does not
establish a suspect class based on gender,128 nor does it
discriminate on the basis of gender because males and females are
treated alike under the statute.129 The statute treats unmarried
persons
equally because a male cannot marry another male, and a female
cannot marry another female. Gender discrimination, according to
the dissent, is when one gender is given preference over the
other gender.130 Thus, the dissent stated that the statute shoul
d not be subjected to the "strict scrutiny" standard, but instead
should be subjected to the "rational basis" test.131=20
Furthermore, the dissent noted that the state of Washington has
an ERA identical to Hawaii's ERA, yet the Singer court found that
a pro
hibition on same-sex marriage did not discriminate on account of
sex.132 The dissent also argued that HRS Y$572-1 should not be
presumed unconstitutional, claiming that the general rule is that
every statute is presumed to be constitutional.133
Finally, the dissent stated that the appellants should
address their claims to the legislature because this decision can
have "repercussions on the finances and policies of the
governments and industry of [Hawaii and other states]."134 The
dissent noted
that the legislature "can express the will of the populace in
deciding whether such benefits should be extended to persons in
the appellants' circumstances."135=20
C. Critical Analysis
The first half of the court's analysis, holding that there
is no fundamental right to same-sex marriage arising from the
right to privacy,136 found agreement
among all of the court.137 The basic premise that same-sex
marriag
e is not rooted in the traditions of the people certainly applies
to modern Americans, as there is not a long-standing American
tradition of same-sex marriage.138 The second half of the
court's opinion, its equal protection analysis,139 deserves
furthe
r consideration. The essential difference of opinion between the
plurality and the dissent revolved around whether or not HRS
Y$572-1 establishes a suspect classification on the basis of
sex. =20
The Hawaii Supreme Court would have created less
controversy by deciding not to apply strict-scrutiny in this
case. It had to determine the constitutionality of a statute
that on its face classifies
according to sex.140 In light of the Supreme Court's reasoning
in
Loving, it was clear that equal application of the statute does
not mean that the statute affords equal protection.141 Thus the
Hawaii Supreme Court was faced with a statute that classifies
according to sex and that does not necessarily accord equal
protection. The determinative issue therefore was what level of
scrutiny to apply to such a statute. As discussed above, the
court noted that under Hawaii precedent, a higher level of
scrutiny is ap
plied to sex-based classifications. Furthermore, because the
Hawaii Constitution contains an Equal Rights Amendment, applying
strict scrutiny would be in accord with the United States Supreme
Court's reasoning. Thus, the court's decision to apply strict s
crutiny is sound, as it is based on state precedent and Supreme
Court reasoning.
It is worth noting however that the court never directly
answered the question of whether marriage by definition precludes
same-sex couples from marrying. The dissent emphasized the
idea that marriage by definition means only a union of man and
woman.142 However, the plurality did not answer that question
because
the
question that the court was required to answer was whether or not
the Equal Protection Clause of the Hawaii Constitution was=20
implicated by a prohibition on same-sex marriages. By applying
Loving's analysis of race-based classifications to an analysis of
sex-based classifications, the plurality answered the equal
protection question and essentially side-stepped the issue of the
definition of marriage.=20
The dissent argued that the issue of same-sex marriage
is better left to the legislature.143 The plurality responded
that it was not legislating but was merely performing its proper
role: reviewing the constitutionality of existing
legislation.144 =20
Finally, the concurrence's preoccupation with the biological
nature of a person's sexual orientation was not relevant to the
court's equal protection analysis.145 The plurality's analysis
focused on a sex-based classification, not a sexual orientation=20
classification. As the plurality noted, the biological nature of
person's sexual orientation does not affect a determination of
whether state regulation of marriage on the basis of the
applicants' sex denies the applicants equal protection of the
laws.146 =20
IV. IMPACT
This decision has sparked debate in Hawaii147 and generated
nationwide publicity.148 In Hawaii, certain groups
are planning to circulate petitions to amend the state
constitution.149 The court's analysis, and its conclusion that a
prohibition of same-sex marriage is subject to strict scrutiny,
may influence other state courts confronting the issue.150 Its
analysis will be especially relevant in those states that, like
Hawaii, have an Equal Rights Amendment in their state
constitution.151
The full impact of this case cannot be assessed until the
result on remand is known. It seems likely that the
state will be unable to meet its burden, and thus the statute
will be found unconstitutional.152 Daniel Foley, the attorney
who=20
represented the couples, said "the state should find it difficult
to meet any compelling interest."153 Hawaii Deputy Attorney
General Sonia Faust agreed that the test is difficult to meet
but, she said "the case is not over", and she is researching
rulin
gs that permitted regulations affecting fundamental rights.154
If the state is unable to meet its burden, this decision
could affect the whole nation.155 According to Daniel Foley,
there are 2 possible scenarios: more liberal state courts will
grant "full faith and credit" to marriages ratified in Hawaii,
while more conservative states may resist recognizing same-sex
marriages, possibly citing to the Supreme Court's upholding of
sodomy statutes on Federal Constitutional grounds.156 The public
will probably have a mixed response towards recognition of
Hawaiian same-sex marriages in other states,157 and undoubtedly
many states
will resist recognizing Hawaiian same-sex marriages.158 The
result will be extensive litigation159 and public debate.160=20
Thus, although this case involved only state constitutional
issues
, its effect may be far-reaching as other states must confront
the issue of recognizing Hawaiian same-sex marriages.=20
Eventually, the conflict created by this state constitutional
case may eventually force the United States Supreme Court to
resolve the is
sue of nationwide recognition of same-sex marriages.161
Greg Ladner=20
1 Jorge Aquino, Will Other States Say 'Aloha' to Same-Sex
Marriages?, The Recorder, May 10, 1993, at 3 (questioning whether
"ground-breaking" nature of Hawaii Supreme Court's ruling will
affect other states); Rorie Sherman, Gay Law No Longer Closeted,
N
at'l L.J., October 26, 1992, at 1 (explaining that "as the Hawaii
suit suggests, inroads are being made in the most controversial
area: family law").
2 852 P.2d 44 (Haw. 1993).
3 Id. at 67.
4 For a discussion of the history of marriage regulation in the
United States, see infra notes 15-32 and accompanying text.
5 For a discussion of cases dealing with the issue of same-sex
marriages, see infra notes 38-63 and accompanying text.
6 For a discussion of the facts in Baehr, see infra notes 66-71
and accompanying text.
7 For a discussion of the plurality's analysis in Baehr, see
infra notes 77-114 and accompanying text. For a discussion of
the concurring and dissenting opinions, see infra notes 115-135
and accompanying text.
8 For a discussion of the validity of the court's analysis, see
infra notes 138-57 and accompanying text.
9 For a discussion of possible attempts at amending the Hawaii
Constitution, see infra note 149.
10 For a discussion of the debate in Hawaii created by this
decision, see infra notes 147, 149.
11 For a discussion of the potential impact of this decision in
other states, see infra notes 152-61 and accompanying text.
12 For a discussion of the possibility of litigation in other
states as a result of the Baehr decision, see infra notes 158-60
and accompanying text.
13 Maynard v. Hill, 125 U.S. 190 (1888). This case involved a
challenge to a divorce granted by legislative act of the
Territory of Oregon. Id. at 203. The Court held, inter alia,
that marriage is subject to the control of state legislature. Id.
at 205.
14 Baehr v. Lewin, 852 P.2d 44, 58 (Haw. 1993).
15 Parke v. Parke, 25 Haw. 137, 404-05 (1920) (holding that
person whose marriage was not authorized by the state was not
eligible for inheritance rights given to a legally married
spouse). =20
The Hawaii Supreme Court in Baehr noted a similar holding in
a case from another jurisdiction involving a same-sex spouse. 852
P.2d at 58. In De Santo v. Barnsley, 476 A.2d 952 (1984), a
Pennsylvania superior court held that although the state
recognize
d "common law marriage" between opposite sex couples, it would
not recognize a "common law marriage" between a same-sex couple.
16 Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942).
The Supreme Court, noting the fundamental right to marriage,
struck down on equal protection grounds an Oklahoma statute which
allowed involuntary sterilization of habitual criminals. Id. a
t 541. In Griswold v. Connecticut, 381 U.S. 479 (1965), the
Supreme Court held that a statute which prohibited married
couples from using contraception violated the right to privacy
under the Due Process Clause of the Fourteenth Amendment. The
Court's d
ecision was based on the fundamental right to marriage. Id. at
485-86. In Zablocki v. Redhail, 434 U.S. 114, 386 (1978), the
Supreme Court reaffirmed the fundamental right to marry. The
Court invalidated a Wisconsin statute which required any state
resi
dent under obligation to pay child support to prove that all
child support obligations were met before being allowed to marry.
Id. at 114-91. The Court held that the statute interfered with
the fundamental right to marry. Id. at 386-87.
17 Baehr, 852 P.2d at 55.
18 Skinner, 316 U.S. at 541.
19 Zablocki, 434 U.S. at 386-91. However, a state regulation
that does "not significantly interfere with decisions to enter
into the marital relationship may legitimately be imposed." Id.
at 386.
20 Zablocki at 387.
21 Zablocki at 386-91. The Court stated that "[w]hen a
statutory classification significantly interferes with the
exercise of a fundamental right, it cannot be upheld unless it is
supported by sufficiently important state interests and is
closely tailor
ed to effectuate only those interests." Id. at 388.
22 The United States Supreme Court however, has never directly
considered the issue of same-sex marriage. See, e.g., G. Sidney
Buchanan, Same-Sex Marriage: The Linchpin Issue, 10 U. Dayton L.
Rev. 541, 545 (1985). ("It should be stressed that the Unite
d States Supreme Court has not directly confronted the same-sex
marriage issue.")=20
23 As the Baehr court noted, "In Skinner, the right to marry was
inextricably linked to the right of procreation." Baehr v. Lewin,
852 P.2d 44,55 (citing Skinner v. ex rel. Williamson, 316 U.S.
535,541 (1942)). =20
24 In Griswold, the court stated, "[w]e deal with a right of
privacy older than the Bill of Rights - older than our political
parties, older than our school system. Marriage is a coming
together for better or for worse ... [i]t is an association that
pr
omotes a way of life." Griswold v. Connecticut, 381 U.S. 479,
486 (1965).
In Zablocki, the Court stated, "it would make little sense
to recognize a right of privacy with respect to other matters of
family life and not with respect to the decision to enter the
relationship that is the foundation of the family in our
society....
Surely, a decision to marry and raise the child in a traditional
family setting must receive equal protection." 434 U.S. at 386.
25 388 U.S. 1 (1967). In Loving, two residents of Virginia, a
white man and an African American woman, were married in the
District of Columbia and then returned to Virginia. Id. at 2.
They were indicted for violating Virginia's ban on interracial
marri
ages and were sentenced to one year in jail after pleading
guilty. Id. at 3. The trial judge suspended their sentence for
25 years on the condition that the couple leave the state for
that period of time. Id. at 3. The United States Supreme Court
reve
rsed their convictions holding that the prohibitions on
interracial marriages violated both the Equal Protection Clause
and the Due Process Clause of the Fourteenth Amendment. Id. at
8-12.
26 Baehr, 852 P.2d at 63 (citing Loving, 388 U.S. at 3).
27 Loving, 388 U.S. at 8-9.
28 Loving, 388 U.S. at 7 (quoting Korematsu v. United States,
323 U.S. 214, 216 (1944)).
29 Miscegenation is defined: "A mixture of races; esp: marriage
or cohabitation between a white person and a member of another
race." Webster's Third New Int'l Dictionary 1442 (1972).
30 Loving at 11-12.
31 Frontiero v. Richardson, 411 U.S. 677, 682-88 (1973).
Frontiero involved a challenge to a federal statute which
required spouses of female military employees to prove their
dependency in order to receive certain benefits. Id. at 679-80.
Spouses of male military employees did not have to prove their
dependency. Id.=20
The Supreme Court, in a plurality opinion, held that the statute
was invalid because it accorded differential treatment to males
and females. Id. at 690-91. There was disagreement between=20
the justices as to the level of judicial scrutiny required for a
statutory sex-based classification. Id. at 690-92. However, as
the Baehr court noted, the logical inference from the opinion is
that "had the Equal Rights Amendment been incorporated into t
he United States Constitution ... the Frontiero Court would have
subjected statutory sex-based classification to 'strict' judicial
scrutiny." Baehr v. Lewin, 852 P.2d 44, 67. =20
However, the Baehr court also noted that "the current
governing test under the Fourteenth Amendment is a standard
intermediate between rational basis and strict scrutiny." Id. at
64 (Citing Craig v. Boren, 429 U.S. 190, 197 (1976)).
32 Frontiero, 411 U.S. at 690-91.
33 Nelson v. Miwa, 546 P.2d 1005 (Haw. 1976) The Hawaii Supreme
Court held that a university policy of discharging employees at
the age of 65 did not meet the rational basis test. Id. at 1013.
The court also noted that "laws classifying on the basis of
suspect categories or impinging upon fundamental rights are
presumed to be unconstitutional unless the state shows compelling
state interests which justify such classifications." Id. at 1008
(citing =19ork v. State, 498 P.2d 644, 647 (Haw. 1972)).
34 581 P.2d 1164 (Haw. 1978). In Holdman, a woman challenged a
prison's requirement that female visitors wear a brassiere. Id.
at 1165-66. The Hawaii Supreme Court upheld the dress
requirement noting that the requirement survived even under the
strict=20
scrutiny test. Id. at 1169. The dress requirement served a
compelling state interest in maintaining prison security. Id. at
1167-68.=20
35 Id. at 1168.
36 Id. at 1167-68.
37 See Joan Biskupic, Ruling by Hawaii's Supreme Court Opens the
Way to Gay Marriages, Wash. Post, May 7, 1993, at A10 ; see also
Andrew H. Friedman, Same-Sex Marriage and the Right to Privacy:
Abandoning Scriptural, Canonical, and Natural Law Based Defi
nitions of Marriage, 1992 How. L.J. 173, 187-88 (1992) (noting
that no state or federal court has recognized same-sex marriage).
38 Alissa Friedman, The Necessity for State Recognition of
Same-Sex Marriage: Constitutional Requirements and Evolving
Notions of Family, 3 Berkeley Women's L.J. 134, 111 (1987-88)=20
(examining same-sex marriage cases, this article argues that
statutes de
nying same-sex marriage interfere with fundamental rights and
should be subjected to strict judicial scrutiny).
39 191 N.W.2d 185 (Minn. 1971), appeal dismissed, 409 U.S. 810
(1972).
40 Id. at 185.
41 Id. at 185-86.
42 Id. at 186-87. Note that apparently no state constitutional
issues were raised in this case.
43 For a discussion of the U.S. Supreme Court's decision in
Skinner, see supra notes 17-18, 23 and accompanying text.
44 For a discussion of the U.S. Supreme Court's decision in
Griswold, see supra notes 16 and 24 and accompanying text.
45 Baker, 191 N.W.2d at 186. The Baker court noted that Skinner
and Griswold both discussed the historic nature of the
institution of marriage. Id. at 186 (citing Skinner, 316 U.S. at
541 and Griswold, 381 U.S. at 496). The Baker court stated that
"[t
]his historic institution is more deeply founded than the
asserted contemporary concept of marriage and societal interests
for which petitioners contend." Id. The court also stated that,
"[t]he equal protection clause of the Fourteenth Amendment, like
th
e due process clause, is not offended by the state's
classification of persons authorized to marry." Id. at 187.
46 For a discussion of the U.S. Supreme Court's decision in
Loving, see supra notes 25-30 and infra notes 146, 147 and
accompanying text.
47 Baker, 191 N.W.2d at 187.
48 501 S.W.2d 588 (Ky. Ct. App. 1973). Note that in 1973, the
Kentucky Court of Appeals was the highest state court.
49 Id. at 589.
50 Id. at 589.
51 Id. at 590.
52 522 P.2d 1187 (Wash. Ct. App. 1974).
53 Id. at 1188.
54 Id. at 1188-89. The appellants specifically alleged
violations of the Eighth, Ninth, and Fourteenth Amendments to the
United States Constitution. Id.
55 Id. at 1189.
56 Id. at 1189-1195.
57 The court used the same reasoning as was used in Baker v.
Nelson, 191 N.W.2d 185 (Minn. 1971) and in Jones v. Hallahan, 501
S.W.2d 588 (Ky. Ct. App. 1973).
58 Singer, 522 P.2d at 1192.
59 Id. at 1196. The court noted Washington precedent and the
United States Supreme Court case Frontiero v. Richardson, 411
U.S. 677 (1973), both suggest that attempts at sexual
discrimination require strict scrutiny. Id.
60 Id. at 1196.
61 Id. at 1196-97.
62 Id. at 1196-97. The court determined that a rational basis
existed because "marriage as now defined is deeply rooted in our
society" and the societal values in this area should be left to
the legislature. Id. at 1197.
63 See, e.g., Dean v. District of Columbia, 18 Fam.L.Rep.(BNA)
1381 (D.C. Super Ct. 1992) (denying same-sex marriage because
definition of marriage does not allow union between two people of
same-sex); Adams v. Howerton, 673 F.2d 1036 (9th Cir.) cert. de
nied 458 U.S. 1111 (1982) (denying same-sex marriage between male
American citizen and male alien).
64 See, e.g., Bowers v. Hardwick, 106 S.Ct. 2841 (1986) (holding
that Georgia's anti-sodomy statute did not violate the right to
privacy); Braschi v. Stahl Associates, 543 N.E.2d 49 (N.=19. 1989)
(holding that gay lover had right to stay in deceased lover'
s apartment because he qualified as member of deceased lover's
family); Matter of Alison D. v. Virginia M., 552 N.=19.S.2d 321
(N.=19. App. Div. 1990) (holding that "lesbian partner was not a
parent under Domestic Relations Law Y$70) .
65 Supra note 39.
66 There were 2 female couples and 1 male couple. Baehr v.
Lewin, 852 P.2d 44, 48-49 (Haw. 1993).
67 Id. at 49; See Wash. Post supra note 39 (noting that one
couple, Joseph Melilio and Pat Lagon, had lived together for
fifteen years and wanted to marry for societal affirmation as
well as for financial and legal benefits accorded married
couples).
68 Baehr, 852 P.2d at 49-50. Hawaii Revised Statute Y$572-1
(1985) provides, in relevant part:
Requisites of valid marriage contract. In order to make valid the
marriage contract, it shall be necessary that:
(1) The respective parties do not stand in relation to each other
of ancestor and descendant of any degree whatsoever, brother and
sister of the half as well as to the whole blood, uncle and
niece, aunt and nephew, whether the relationship is legitimate o
r illegitimate;
(2) Each of the parties at the time of contracting the marriage
is at least sixteen years of age; provided that with the written
approval of the family court of the circuit court within which
the minor resides, it shall be lawful for a person under the ag
e of sixteen years, but in no event under the age of fifteen
years, to marry, subject to section 572-2 [relating to consent of
parent or guardian];
(3) The man does not at the time have any lawful wife living and
that the woman does not at the time have any lawful husband
living;
(4) Consent of neither party to the marriage has been obtained by
force, duress, or fraud;
(5) Neither of the parties is a person afflicted with any
loathsome disease concealed from and unknown to, the other party;
(6) It shall in no case be lawful for any person to marry in the
State without a license for that purpose duly obtained from the
agent appointed to grant marriage licenses; and
(7) The marriage ceremony be performed in the State by a person
or society with a valid license to solemnize marriages and the
man and woman to be married and the person performing the
marriage ceremony be all physically present at the same place and
time
for the marriage ceremony.
Hawaii Revised Statutes Y$572-1 (1985) (emphasis added as in
Baehr, 852 P.2d at 49).
69 Baehr, 852 P.2d at 48-49. The named defendant in this case
is John C. Lewin who was acting in his official capacity as
Director Of the Department of Health, State of Hawaii. Id. at
48.
70 The right to privacy is guaranteed by Hawaii Constitution
article I, Y$6 which provides:
The right of the people to privacy is recognized and shall not be
infringed without the showing of a compelling state interest. The
legislature shall take affirmative steps to implement this right.
Hawaii Const. art 1, Y$6.
The right to equal protection of the laws and due process of
law is guaranteed by Hawaii Constitution article I, Y$5 which
provides:
No person shall be deprived of life, liberty or property without
due process of law, nor be denied the equal protection of the
laws, nor be denied the enjoyment of the person's civil rights or
be discriminated against in the exercise thereof because of ra
ce, religion, sex or ancestry.
Hawaii Const. art I, Y$5.
71 Baehr, 852 P.2d at 52. Note that the circuit court
apparently made certain findings of fact and law including a
finding that homosexuals do not constitute a "suspect class" for
purposes of equal protection analysis, meaning that HRS Y$572-1
must only=20
meet the rational relationship test. Id. at 53-54. The court
made the further finding that HRS Y$572-1 satisfied the rational
relationship test, and therefore there was no violation of the
applicant couples' constitutional right to equal protection of
the
law. Id. at 54.
72 The opinion was written by Judge Levinson, who was joined by
Chief Judge Moon. Baehr, 852 P.2d at 48. Intermediate Court of
Appeals Chief Judge James Burns, a substitute associate justice
concurred in a separate opinion. Id. Judge Walter Heen, als
o a substitute associate justice, wrote the dissent. Id.=20
Retired associate justice =19oshimi Hayashi would have joined in
the dissent, but his term expired before the filing of the
opinion. Id.
73 Id. at 64.=20
74 Id. at 67. Note, the Hawaii Supreme Court did agree with the
DOH that the right to privacy guaranteed by the Hawaii
Constitution did not give the applicant couples a constitutional
right to same-sex marriage. See infra notes 83-91 and
accompanying text.
75 To satisfy the "strict scrutiny" test, the DOH must show
that "(a) the statute's sex based classification is justified by
compelling state interests and (b) the statute is narrowly drawn
to avoid unnecessary abridgment of the applicant couples' const
itutional rights". Id. at 67.
76 Id. at 68. The court granted in part a motion for
reconsideration or clarification by clarifying the "strict
scrutiny" standard. The motion was denied in all other respects.
Id. at 74-75.
77 For a discussion of the Hawaii Supreme Court's right to
privacy analysis, see infra notes 77-86 and accompanying text.
78 For a discussion of the Hawaii Supreme Court's equal
protection analysis, see infra notes 88-91 and accompanying
text.
79 Baehr, 852 P.2d at 55.
80 Id. at 55.
81 For a discussion of the U.S. Supreme Court's decision in
Skinner, see supra notes 17-18, 23 and accompanying text.
82 For a discussion of the U.S. Supreme Court's decision in
Zablocki, see supra notes 16, 19-21, 24 and accompanying text.
83 Baehr, 852 P.2d at 56. Skinner involved governmental
interference with procreation rights, thus implicating a union
capable of procreation, or in other words, a male and female
union. 316 U.S. at 541. The language of Zablocki seemed to
contemplate
a union of man and woman: "if appellee's right to procreate
means anything at all, it must imply some right to enter [into
marriage]" 434 U.S. at 386.
84 Baehr, 852 P.2d at 57.
85 Id. at 57 (quoting Griswold v. Connecticut, 381 U.S. 479, 493
(1965), concurring opinion of J. Goldberg).
86 Id.
87 Id.
88 Id. at 57-68.
89 Id. at 58.
90 Id. at 59. Those rights and benefits include income tax,
inheritance and child custody benefits. Id.
91 Baehr at 59-60. "Article I, section 5 of the Hawaii
Constitution provides in relevant part that '[n]o person shall
... be denied the equal protection of the laws, nor be denied the
enjoyment of the person's civil rights or be discriminated
against in
the exercise thereof because of race, religion, sex, or
ancestry.'(Emphasis added)" Id. at 60. =20
Note also that the Hawaii Supreme Court made clear that its
equal protection analysis did not focus on discrimination because
of sexual orientation, it focused on discrimination because of a
person's sex. Id. at 53. The court also noted that "homosexual
" marriages and "same-sex" marriages are not synonymous.=20
"Parties to a same-sex marriage could theoretically be either
homosexuals or heterosexuals." Id. at 51.
92 Id. at 60-63.
93 For a discussion of the Baker decision, see supra notes 39-47
and accompanying text.
94 For a discussion of the DeSanto decision, see supra note 15.
95 Baehr, 852 P.2d at 61.
96 Id. at 61.
97 Id.
98 For a discussion of the Jones decision, see supra notes 48-51
and accompanying text.
99 For a discussion of the Singer decision, see supra notes
52-62 and accompanying text.
100 Baehr, 852 P.2d at 61, 63.
101 Id. at 63 (citing Loving v. Commonwealth of Virginia, 388
U.S. 1, 3 (1967)).
102 Loving, 388 U.S. at 8-12.
103 Baehr, 852 P.2d at 63.
104 Id. at 63-67.
105 Id. at 63-64.
106 Baehr, 852 P.2d at 60-61.
107 Id. at 64.
108 For a discussion of the Hawaii Supreme Court's decision in
Holdman, see supra notes 34-36 and accompanying text.
109 Baehr, 852 P.2d at 64-65 (citing Holdman v. Olim, 581 P.2d
1164, 1167-68 (Haw. 1978)).
110 For a discussion of the U.S. Supreme Court's decision in
Frontiero, see supra notes 31-32 and accompanying text.
111 Baehr, 852 P.2d at 66-67 (citing Frontiero v. Richardson, 411
U.S. 677, 679-680, 692, 727 (1973)).
112 Hawaii Const. art. I, Y$3.
113 Baehr, 852 P.2d at 67.
114 Id. Note, the court devoted a concluding section to refuting
many of the points raised by the dissent. Id. at 67-68. For
further discussion of that section see the critical analysis
section of this Note.
115 Id. at 68.
116 Id. at 68-69.
117 Id. at 69.
118 Id. at 70.
119 Id. at 70. After this opinion was published, new evidence
was released by the National Institute of Health suggesting a
genetic link to sexual orientation. See Boyce Rensberger, Study
Links Genes to Homosexuality; NIH Finds Gay Men Share Chromosonal
Characteristics, Wash. Post, July 16, 1993, at A1 (discussing
results of National Institute of Health study suggesting that gay
men may inherit genes that predispose them to be homosexual).
120 Baehr, 852 P.2d at 68-70.
121 Id. at 70.
122 Id. at 70. For a discussion of arguments suggesting that the
issue of same-sex marriage is better left to the legislature, see
infra notes 134-35 and accompanying text.
123 Baehr, 852 P.2d at 70.
124 Id. The dissent believed that the plurality held that the
appellants "have a 'civil right' to same-sex marriage." Id.
However, as the plurality stated in a section refuting the
dissent, the plurality did not hold that appellants have a "civil
right"=20
to same-sex marriage, the plurality simply held that marriage is
a basic civil right. Id. at 67. That proposition was relevant
to the remainder of the plurality's analysis. Id.
125 Id. at 70-71.
126 Baehr at 71. The earlier same-sex marriage cases were Singer
v. Hara supra notes 52-62, Baker v. Nelson supra notes 39-47,
Jones v. Hallahan supra notes 48-51, De Santo v. Barnsley supra
note 15.
127 Baehr, 852 P.2d at 71. The dissent also stated that Loving
does not refute that reasoning. Id.
128 The dissent used the word "gender" instead of "sex" and noted
that the U.S. Supreme Court does not recognize sex or gender as a
"suspect" classification. Id. But see supra notes 33-34, 112-113
and accompanying text (noting that Frontiero decision hel
d that higher level of scrutiny was applicable to sex-based
classifications).
129 Baehr, 852 P.2d at 71-72.
130 Id. at 72.
131 Id. The dissent also claimed that the statute would satisfy
the "rational basis" test because it rationally furthers a
legitimate state interest. Id.=20
132 Id. at 72-73 (quoting Singer v. Hara, 522 P.2d 1187, 1195
(Wash. Ct. App. 1974). The Singer court found no invidious
discrimination on account of sex because the state's prohibition
on same-sex marriage was not based upon appellants' gender, but
was=20
"based upon the state's recognition that our society as a whole
views marriage as the appropriate and desirable forum for
procreation and the rearing of children." 522 P.2d at 1195. The
dissent argued, that the purpose of HRS Y$572-1 is also to promote
an
d protect propagation. Baehr, 852 P.2d at 73.
133 Id. at 73 (quoting Washington v. Fireman's Fund Ins. Cos.,
708 P.2d 129, 134 (1985)).
134 Id. at 74. =20
135 Id. The dissent also pointed out that many municipalities
extend such benefits without conferring marriage through domestic
partnership ordinances. Id.=20
136 Id. at 57.
137 The concurrence and dissent both agreed with the majority on
this point. Supra notes 79-84, 121. But see Friedman, supra
note 38 (arguing that fundamental right to same-sex marriage
arises from right to privacy).
138 In this case, the question was only whether or not same-sex
marriage is rooted in the traditions and collective conscience of
the citizens of Hawaii. According to the Baehr court, it is not.
Baehr, 852 P.2d at 57.
Note that there are claims that throughout history various
cultures and religions have permitted same-sex marriages. Joan
Connell, A National Debate on Homosexuality, Star Tribune,
February 10, 1993, at 1E (noting that scholars have discovered
evidence=20
that various cultures and religions, including Christianity, have
allowed same-sex marriages).
139 Baehr, 852 P.2d at 57-67.
140 Baehr, 852 P.2d at 60 ("Rudimentary principles of statutory
construction render manifest the fact that, by its plain
language, HRS Y$ 572-1 restricts the marital relation to a male
and a female.").
141 See infra notes 140-45.
142 In particular, the dissent notes the argument of the Singer
court that marriage by definition only includes members of the
opposite sex. Baehr, 852 P.2d at 71.
143 Baehr, 852 P.2d at 74. See also John Leo, Same-Sex Marriages
Win a Victory But Portend an Overhaul of Tradition, Language,
Common Sense, San Diego Union-Tribune, May 19, 1993 at b7
(arguing that court was judicially legislating and that domestic
part
nership ordinances are a better approach to the issue). But see
Andrew Sullivan, Here Comes the Groom: A Conservative Case for
Gay Marriage, New Republic, August 28, 1989 at 20 (noting that
domestic partnership ordinances have flaws which are not found i
n same-sex marriage).
144 Baehr, 852 P.2d at 68.
145 Furthermore, it would be difficult for a fact-finder to
answer that question because there is no conclusive evidence at
this time. For a discussion of present scientific knowledge on
the issue of the biological nature of sexual orientation, see
supra
note 121.
146 Baehr, 852 P.2d at 53. The plurality also notes that the
biological nature of a person's sexual orientation is also
"immaterial to the exercise of 'strict scrutiny' review." Id.=20
147 Sherry Jacobsen, Hawaii Debates Gay Marriages; State May
Recognize Such Unions after Court Ruling, Pair's Bias Suit,
Dallas Morning News, September 17, 1993 at 1A (noting that the
state legislature is holding hearings to measure public opinion
on same-sex marriages).
148 Articles discussing this case have appeared in major
newspapers and magazines. See supra notes 1, 37, and infra notes
152, 156, 161.
149 "Several local groups say they will circulate petitions
calling for a state constitutional amendment." Dallas Morning
News, supra note 147. =20
150 At present, there are same-sex marriage challenges in
Florida and Arizona courts.
151 For a discussion of the relevance of an Equal Rights
Amendment to the court's analysis, see supra notes 106-16.
152 For Gays, Wedding Bells May Soon Ring, Newsweek, May 17,
1993 at 62 (noting that under the "strict scrutiny" standard, the
same-sex marriage ban will probably fail).
153 Updates, Nat'l L.J., May 17, 1993, at 6.
154 Wash. Post, supra note 39; Sonia Faust is also looking into
arguments against same-sex marriages based on "nuclear family,
morality issues and other sociological research." Dallas Morning
News, supra note 147 ; Commentators have argued that the stat
e has a compelling interest in protecting and fostering the
marriage institution as a union of man and woman only. See G.
Sidney Buchanan, supra note 24 (arguing that recognition of
same-sex marriages should not be performed by the judiciary, but
instead=20
should be left to the free workings of the political process
embodied in the legislature).
155 Dallas Morning News, supra note 147 (noting that implications
could extend beyond the Hawaiian islands because of the "Full
Faith and Credit Clause" of the U.S. Constitution).
156 The Recorder, supra note 4.
157 Newsweek Poll, supra note 2.=20
158 "What seems certain is that there would be court battles over
recognition of these unions by other states." Dallas Morning
News, supra note 147. This article also noted that attempts at
recognition of Hawaiian same-sex marriages could cause tension b
etween states such as Texas and Hawaii. Id.
159 "Gay rights advocates say they expect years of litigation if
agencies and legislatures in other states resist recognizing
same-sex Hawaiian marriages." The Recorder, supra note 4.
160 "[A]ny victory for gay rights could trigger a backlash that
would make the fight over gays in the military seem tame."
Newsweek, supra note 163.
161 Dallas Morning News, supra note 147 (noting that legal
experts believe the U.S. Supreme Court will ultimately decide the
issue of same-sex marriage).
=20